Religious Basis for Waqf
The Qur'an and Hadith provide religious foundations and encouragement for the practice of waqf.
1. Qur'an – Surah Ali 'Imran, Verse 92
Allah says:
“You will never attain righteousness until you spend from what you love. And whatever you spend—surely Allah knows it well.”
[Qur'an, Surah Ali 'Imran (3): 92]
2. Hadith Narrated by Muslim from Ibn 'Umar
Ibn 'Umar narrated that Umar acquired a piece of land in Khaybar and asked the Prophet Muhammad (peace be upon him) for guidance regarding it. The Prophet advised him to retain the property itself and dedicate its benefits for charitable purposes.
Umar subsequently dedicated the benefits of the land on the condition that it would not be sold, gifted, or inherited. The waqf was designated for poor relatives, enslaved persons seeking emancipation, those striving in the cause of Allah, travelers, and guests, subject to the applicable conditions.
[Sahih Muslim, Vol. II, pp. 13–14]
3. Hadith Narrated by Muslim from Abu Hurairah
The Prophet Muhammad (peace be upon him) said that when a person dies, their deeds come to an end except for three: ongoing charity (sadaqah jariyah), beneficial knowledge, and a righteous child who prays for them.
[Sahih Muslim, Vol. II, p. 14]
Religious Basis for Hibah
Hibah is encouraged in Islam because giving gifts may foster harmony and strengthen bonds of affection among people.
1. Hadith Narrated by Al-Bayhaqi from Abu Hurairah
The Prophet Muhammad (peace be upon him) said:
“Give gifts to one another and you will grow to love one another.”
[Al-Bayhaqi, Sunan al-Bayhaqi VI:169; Sahih al-Jami' al-Saghir, Hadith No. 3004; Irwa' al-Ghalil, Hadith No. 1601]
2. Hadith Narrated by Ahmad and Al-Tabarani from Khalid bin 'Adi
Khalid bin 'Adi narrated that the Prophet Muhammad (peace be upon him) said that when a person receives a good thing from another person without having asked or expected it, they should accept it and not reject it, as it is provision granted by Allah.
[Narrated by Ahmad and Al-Tabarani; authenticated by Ibn Hibban and Al-Hakim]
Similarities and Differences Between Waqf and Hibah
Waqf and hibah share several similarities, but they also have important legal distinctions under Islamic law.
1. Parties Involved
Both waqf and hibah involve:
A person who gives or dedicates the property;
The property or asset being given or dedicated; and
The person or group who receives or benefits from it.
The person establishing a waqf is referred to as the Waqif, while the person giving a hibah is referred to as the Wahib.
2. Acceptance
In waqf, the dedication may take effect when the Waqif clearly declares or otherwise demonstrates their intention to establish the waqf. Acceptance (qabul) by another party is not necessarily required.
In hibah, however, the donor (Wahib) must clearly express or demonstrate the intention to transfer the property (ijab), and the recipient must accept the gift (qabul).
3. Type of Property
Waqf property may consist of movable or immovable assets that have lasting utility and recognized value under Islamic principles.
Hibah may involve various types of property, whether consumable or durable.
Neither waqf nor hibah may involve property that is prohibited from being legally traded, including property serving as collateral (borg), prohibited or unlawful property, and similar assets.
4. Beneficiaries
Waqf property is dedicated for the benefit of a group or community in accordance with the purpose of the waqf.
Hibah, on the other hand, may be given to an individual or a group, whether for a public or private purpose.
5. Ownership
Waqf property does not become the personal property of an individual beneficiary.
Property transferred through hibah, however, may become the legal property of the recipient.
How Lawyers Can Assist with Hibah & Waqf Matters
A lawyer may assist clients with legal matters concerning hibah and waqf, including:
Legal Advocacy
Advocating for the client's rights and interests in disputes or legal matters concerning hibah and waqf.
Legal Representation
Providing legal assistance and representation to clients in seeking legal remedies and protecting their interests in hibah and waqf matters.
Legal Research
Conducting legal research and reviewing relevant legal materials, including the Compilation of Islamic Law (KHI).
Preparation of Legal Claims and Documents
Assisting with the preparation of legal claims and documents based on the applicable provisions of the Compilation of Islamic Law.
Legal Advice
Providing legal advice within the scope of applicable laws and regulations concerning hibah and waqf and assisting clients in pursuing available legal remedies.
Protection of Legal Rights
Ensuring that the client's legal rights and interests are properly addressed in accordance with the Compilation of Islamic Law (KHI).
Legal Basis
Compilation of Islamic Law (Kompilasi Hukum Islam / KHI)
